Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180960)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 12, 2018 SPRlS/960 Joseph I. Macy, Esq. Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Judge Macy: I have received the petition of Collin Dias appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, on May 9, 2018 Mr. Dias requested "[a]ll city related text messages and emails sent from the Mayors iPhone, iphoneX, and iPad Pro." The City initially responded on May 24, 2018. Previous appeal This request was the subject of a previous apfeal. See SPRl 8/7 64 Determination of the Supervisor of Records (June 8, 2018). In my June gt determination I found that upon receiving clarification from Mr. Dias about the scope of the remaining records sought, the City must provide a response to him in a manner consistent with the order, the Public Records Law and its Regulations. Mr. Dias explains that he modified his request on June 8, 2018 and the City provided a response on June 26, 2018 that included a fee estimate. Mr. Dias appealed and (SPRl 8/960) was opened as a result. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). Where appropriate, municipalities may One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Joseph I Macy, Esq. SPR18/960 Page 2 July 12, 2018 include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current appeal Mr. Dias's June gth email to the City indicates "I hereby clarify the request. I ask for all text messages from the named devices in the records request to any city of Fall River employee, city of Fall River elected official, State Rep Alan Silvia, and any member, employee, or affiliate of Northeast Alternatives." The City's June 26th response asserts "[y]our request is STILL extremely broad in nature to the point where a search of said materials would take an estimated 27 hours to search, segregate, redact, review and claim proper exemptions depending upon what information is discovered." The City provided a fee estimate of $625. 00 which is comprised of $25 per hour for 25 hours of work. In his appeal petition, Mr. Dias seeks a waiver of fees in light of the dates of the City's responses. G. L. c. 66, § 10(e ) provides that " [a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b )." Based upon a review of the file, it is unclear whether the City complied with G. L. c. 66, § 10(e ) by providing responses to the May 9th request and June gth modified request within 10 business days under G. L. c. 66, § lO(b). The City must clarify this matter. Mr. Dias and the City are encouraged to maintain a professional working relationship to ensure that public records requests are clear and concise, and that records are produced efficiently and affordably. It should be noted that the request must reasonably describe the record being sought by including, for example, applicable time periods or topics. G. L. c. 66, § lO(a)(i). Further, a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). Conclusion Accordingly, the City is ordered to provide a response to Mr. Dias in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of

Joseph I Macy, Esq. SPR18/960 Page 3 July 12, 2018 any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murr~ Supervisor of Records cc: Collin Dias